'Why we oppose Digital Security Act'

[The Editors’ Council, the platform of the editors of the daily newspapers in Dhaka, has come up with arguments why it opposes the just-enacted Digital Security Act 2018.]

The Digital Security Act (DSA) just passed in parliament gives the police authority to arrest anyone without a warrant. The act has defined at least 14 offences as non-bailable.

The act contains the following fundamental flaws:

1. In trying to make a law to prevent crimes through digital devices and provide security in the digital sphere, the act ends up policing media operations, censoring content and controlling media freedom and freedom of speech and expression as guaranteed by our constitution.

2. The act gives unlimited power to the police to enter premises, search offices, bodily search persons, seize computers and networks, servers, and everything related to the digital platforms. According to the act, the police can arrest anybody on suspicion without warrant and do not need any approval of any authorities.

3. The act suffers from vagueness and uses many terms that can be misinterpreted and used against the media.

4. DSA will create an atmosphere of fear and intimidation which will make journalism and especially investigative journalism virtually impossible.

5. Other than media professionals, the law will create panic among all users of computers, computer networks, etc.

When the ICT Act was made in 2006, the government said journalists had nothing to fear as its aim was to prevent cyber crimes and punish cyber criminals. The reality is journalists and people who exercised their constitutional rights to freedom of speech suffered imprisonment and harassment under Section 57 of the ICT Act. The same is now being said that journalists have nothing to worry about the DSA, but the apprehension is that journalists will again face the same kind of harassment by this law.

The purpose of the law as mentioned in its preamble is to “ensure digital security and prevent crimes committed on digital platforms.” Hence we should not have been worried about the law. But the problem is that DSA goes much beyond its defined scope and ventures into the territory of media and journalism. The law goes against the very nature and practice of independent journalism that stands to protect people's right to know and exposes abuse of power and corruption.

The DSA deals with the digital world which is ever evolving. Digital technology is all pervasive from national security to food production to health services to financial transactions, and media are no exception.

While other fields mentioned above may require “regulations” media needs “freedom”. The DSA is focused only on the “regulation” aspect and totally neglects the need for media freedom. This is one of the fundamental flaws of DSA, making it so dangerous for the media.

A frightening aspect of the DSA is the enormous arbitrary power given to the police who may arrest a journalist just on suspicion of a so-called crime that he thinks may be committed in the future. The police are allowed to make such arrests which have been made mostly non-bailable without any warrant. In practical terms this will bring journalism under the control of police.

What is also alarming is that out of the 20 or so provisions of the law that deal with offences and punishments, 14 are NON-BAILABLE. Five are bail-able and one can be negotiated. The lowest punishment is 1 year in prison and the highest life-term but mostly in the range of between 4 and 7 years. This will inevitably create an atmosphere of FEAR and INTIMIDATION under which normal functioning of journalism will become extremely risky if not impossible.

Not only does this law go far beyond what it was supposed to address, it is also full of vagueness that leaves scope for abuse of the law. Experience shows both in Bangladesh and abroad that laws that are clearly-worded, crimes that are specified and punishment proportionate to crimes lead to better “rule of law”. Vagueness leads to misinterpretation of crimes and misuse of the law. When law is misused freedom is curtailed.

Another flaw of the DSA is the level of punishment meted out to “offenders”. Let's take the case of the Road Safety Act which was passed along with the DSA. The former provides for a maximum punishment of 5 years for killing people in accidents while a journalist can be punished up to life-term for violating the colonial era Official Secrets Act (1923) which can happen if a reporter takes pictures of an unpublished government document with his mobile phone, which is now a very common practice.

Detailed Explanation

Below we present a detailed analysis as to why Editors' Council considers this law to be anti-free press, against freedom of speech and antithetical to democracy.

We reproduce the provisions of the DSA that we find most dangerous.

Section 8

8) Power to remove or block information and data: (1) If the director general is satisfied that something that is published or disseminated in the digital platform falling within his domain may pose as a threat to digital security, he may request Bangladesh Telecommunication Regulatory Commission (BTRC) to remove such information or data or, in specific cases block the platform.

(2) If it is evident to the law enforcing agencies that something published and disseminated through any digital device or digital medium can create disunity in the country, disrupt economic activities and security, defence, hurt religious values, create communal hatred or bad feelings, create law and order situation then the law enforcing agencies can request the BTRC to remove such content or block it.

(3) On receipt of such requests, BTRC while informing the government will take immediate action to remove or block the content.

Editors’ Council Comment:

There are two issues of concern here -- the power of the director general and the power of the law enforcement agencies. The power to block contents will hit the heart of publication either in print or online. Any report may be blocked or a photograph may be confiscated that may lead to disruption of any media outlet.

The justification needed to remove or block content is too vague and subject to individual interpretation and hence leave the scope for abuse of the law. For example, if exposing corruption in a project leads to stopping its financing by any donor or a private investor, then a journalist can be accused of “disrupting economic activity” under this law and this can lead to blocking or removal of the content.

Section 2121) Punishment for any propaganda against Liberation War, Spirit of the Liberation War, Father of the Nation, National Anthem and National Flag: (1) If an individual generates propaganda against The Liberation War, Spirit of Liberation War, Father of the Nation, National Anthem and National Flag or assists in such a process then such action will be considered a crime.

Editors’ Council Comment:

We are fully committed to the preservation of the dignity and correct history of our Liberation War and given the past experience of attempts at its distortion we understand the need to do something in this regard. However “Spirit of Liberation War” is rather vague term. Without further defining the “crimes” under this section and clearly specifying what constitutes a “crime” we run the risk of serious abuse of this law and harassment of journalists and the punishment is up to life-term or (and) Tk 30million in fine or both.

“Mukti Juddher Chetona” (Spirit of Liberation War) is a vague term and is very subjective and cases can be brought against journalists as interpretations can vary.

We reiterate that we are in favour of protecting the great legacy of our Liberation War for the future generations. However, when laws are being framed we need to be very clear and specific. Given its present form, not only journalists but historians, researchers and even creative writers like novelists will also suffer. It may even result in people not writing or researching much on our Liberation War fearing misinterpretation and the possibility of punishment.

(1) If any person using a website or any digital device-(a) deliberately or knowingly distributes any information or data that is attacking or intimidating in nature; or if a person publishes or distributes any information despite knowing that it is false to irritate, humiliate, defame or embarrass or to discredit a person

Or

(b) Damages the image and reputation of the State or spreads confusion or with the same purpose publishes or distributes fully or partially distorted information or data despite knowing that it is false, and if any one assists in such actions then all such actions of the individual will be considered a crime.

Editors’ Council Comment:

This will directly affect all investigative reporting in the media. Such reports are usually about some irregularities performed by institutions and individuals. Corrupt people will use this law to intimidate journalists and media organisations and try to prevent publication of such stories on the pretext that the reports have attacked or intimidated them. Actually every such report can be said to fall under one or more of the above categories and can be used to harass the media.

Any investigative report that reveals corruption about a person or an institution is bound to “irritate”, “embarrass” or “humiliate” someone. This provision will make it impossible to publish any negative report about any corrupt person. This will reduce newspapers to PR outfits. Journalism of even the most rudimentary investigative nature will become impossible.

The second part of this provision talks about “spreading confusion”. Without specifying the meaning of “confusion”, it may become a weapon of media harassment. What is confusing to one may not be confusing to another. This will surely create a new avenue to intimidate the media.

Then again, what constitutes damaging the “image/ reputation” of the State? Recently we have reported about the corruption in the banking sector by unscrupulous business groups. We have reported that the banks face grim crisis. Does it constitute damaging the “image/ reputation”? We have reported corruption in the law enforcement agencies. We have reported on “custodial deaths” “disappearances”, and “extra-judicial killings”. If someone interprets all these reports as damaging the “image” of the State then this law legalises punishment of journalists and newspapers for making such reports as all newspapers have websites.

Section 28

28) If in any website or electronic system publishes or broadcasts anything that hurts religious values and religious sentiments etc: (1) if any person or group deliberately and knowingly and with the intention of hurting religious values or sentiments or with the intention to provoke such sentiment publishes or broadcasts information then such actions will be considered a crime.

Editors’ Council Comment:

The term “religious sentiment” is a very undefined term. How can a reporter know how and when religious sentiment has been hurt? This term lends itself to diverse interpretations and no journalist will feel comfortable about reporting on such issues. This will prevent journalistic scrutiny over a large area of the society. The recent reporting on the sexual harassment by Catholic priests would not have been possible if those countries had a law preventing reporting that “hurts” religious sentiments. Criticising unlawful fatwa or women's property rights may be interpreted by some as “hurting” their religious values. This section can lead to widespread harassment of journalists.

Section 29

29) Publishing and distributing defamatory information, etc.—1) If a person publishes or distributes any defamatory information mentioned in section 499 of the Penal Code (Act XLV of 1860) via a website or any other electronic format, they will get a maximum penalty of 3 years in jail or Taka 5 lakh in fine, or both.

Editors’ council Comment:

A law already exists to deal with defamation and so a separate law for digital media is not needed. Moreover, there is no logic for enhanced penalty for digital media from print media for the same crime.

Section 31

31) Crimes and penalty for deterioration of law and order, etc. 1) If a person deliberately publishes or broadcasts via a website or any digital platform anything that creates enmity, hatred or acrimony among different classes or communities, or upsets communal harmony, or creates unrest or chaos, or causes or begins to cause deterioration in law and order, then that activity of the said person will be considered a crime.

Editors’ Council Comment:

A news report concerning discrimination of Dalits or ethnic groups and exploitation of disadvantaged groups may be interpreted as causing disaffection between different groups. Any news highlighting plights of the people of Chittagong Hill Tracts may be interpreted as “creating unrest” among different communities. Similarly, news about possible labour unrest, impending hartal or demonstration can be construed as reports that are “creating law and order situation” and thus bring action under this law. There could be a story that a person has died in a demonstration which may later prove to be untrue. Will the media be “guilty of spreading rumours”? Such errors regularly occur in reporting which are corrected immediately. In Bangladesh death figures from floods, cyclones or even roads accidents vary. Government figures are always at variance with privately gathered figures. In such cases according to the DSA media can be sued for “spreading rumour”. Sometimes reports may forecast certain developments which may not exactly happen later. That also can be considered as “spreading rumours”. Thus we find this section as seriously jeopardising freedom of journalism.

Section 32

32) Offence and penalty for breach of Official Secrets—1) If a person commits a crime or assists someone in committing a crime under the Official Secrets Act, 1923 (Act No XIX of 1923) via a computer, digital device, computer network, digital network or any other digital media, they will get a maximum penalty of 14 years in jail or Tk 2.5 million in fines, or both.

2) If a person commits a crime mentioned in the sub-clause (1) for a second time or repeatedly, they will be sentenced to life in prison or a maximum fine of Tk 10 million, or both.

Editors’ Council Comment:

This is a sweeping restrictive law from the colonial times that was promulgated to protect the British administration from any sort of accountability. It is shocking to see it being incorporated for digital platforms. Anything that is not made public by the government is deemed an “official secret”. Let us take an example. We have published dozens of reports about bank defaults based on Bangladesh Bank's findings. All such reports can be said to have violated the Official Secrets Act. All government reports which have not been made public, say, on pollution or child nutrition, are a part of the Official Secrets Act. Is journalism of any worth possible without the use of such official reports? And why should using them be a “crime” as people have a “right to know” under the RTI Act, especially when all such reports are funded by public money.

Could we have done any of the reporting on default loans, gross irregularities in Farmers' Bank or Basic Bank without Bangladesh Bank or government departments' reports which were yet to be made public? And our reporters often use their mobile phones to take pictures of such documents. So they can be thrown in jail for life?

Proponents of this law may find our examples to be “ludicrous”. But real life examples from the use of section 57 of the ICT Act give journalists no reasons for comfort.

Section 43

43) Search, Seizure and Arrest without Warrant—1) If a police officer has a reason to believe that a crime under this law has been or is being or will be committed in any place, or there is a possibility of it happening, or if there is a possibility of evidence being lost, destroyed, deleted or altered or being made scarce in some other way, then the officer, upon putting in writing the reason for his/her belief, can undertake the following tasks:

a) Enter and search the said place and, if intercepted, take necessary action in accordance with the Code of Criminal Procedure;

b) Seize the computer, computer systems, computer network, data and information or other objects used in committing the crime or documents that can help prove the crime while conducting a search in the said place;

c) Bodily search anyone present in the said place;

d) Arrest anyone present in the said place if suspected of committing or having committed a crime under this law.

Editors’ Council Comments:

This is by far the most dangerous of the provisions of the law.This empowers the police to enter any premises, search any computer system, seize any computer network and its servers, bodily search anybody and also ARREST anybody on suspicion.

First, the threat of arrest without warrant will naturally prevent a journalist from doing their work. When police get the power to arrest without warrant, and on mere SUSPICION then media freedom will be buried under this law. Given the fact that 14 out of 20 provisions of punishment are NON BAILABLE the threat of arrest becomes a “Damocles' Sword” constantly hanging over the head of every journalist, causing mental stress. This will prevent all forms of real journalism and make our media nothing more than public relations and propaganda outlets.

Even if the law is not implemented (and why not if the law exists?) the environment of fear will prevent journalists from doing their job. The fear of arrest will become a regular part of the “mental environment” and debilitate a journalist from taking legitimate risks that he or she regularly take to file their stories. The “emotional stress” that it will create should not be underestimated. It can easily be expected that people in power will abuse this law, provoke or “manage” law enforcers to threaten or even arrest journalists for any story that will reveal something that the rich and powerful will want to hide.

The most dangerous side of this law is that since every newspaper and TV station works on digital system, by giving the power to confiscate a computer, a network of computers including servers, the law enforcing agencies have been given, in effect, the power to shut down a newspaper or TV station or a news portal by confiscating its computers, computer system, computer network and other equipment. Thus without closing down a media outlet, this clause opens up the possibility of stopping the publication of a newspaper or the operation of a TV station by the law enforcing agencies.

Under this law out of the 20 or so provisions dealing with crimes and punishment, 14 are cognisable and non-bailable. Given the fact that police have the power to arbitrarily arrest without warrant and on mere suspicion, this law presents a real threat to media freedom as so many offences have been made cognisable and non-bailable.

Conclusion

1. The DSA clearly violates the citizens' Constitutional Right to Freedom of Speech and Expression and freedom of the press, within reasonable restrictions, guaranteed in our most sacred document, the Constitution.2. This law violated the spirit of our Liberation War and the high ideals of freedom that our martyrs laid down their lives for.3. This law is against the fundamentals of democracy, democratic governance and all the rights that our people fought for repeatedly during our struggle against the Pakistani rule and against all martial law regimes after 1971.4. The Digital Security Act is against all the fundamental values of ethical and independent journalism.5. The Digital Security Act is in contradiction with the Right to Information Act.We have explained in detail and made a section by section analysis as to why the Digital Security Act is against our Constitution, against our Fundamental Rights, against freedom of speech and freedom of journalism and as such against democracy.It is thus that the Editors’ Council is forced to reject this law.

Finally, we conclude with a quotation from the Father of the Nation, Bangabandhu Sheikh Mujibur Rahman. Addressing the Speaker, on 3 February, 1956, during the debate on constitution framing in the Constituent Assembly, he said:

“You often say that freedom of speech means freedom of the press. Do you know that editors of East Bengal are summoned and told that you cannot print this or that. Sir, they cannot print the truth, and I can prove it…. The directive goes from the secretariat…An inspector goes on behalf of the government as says you cannot write on a specific subject.

…. This must be clearly written [in the constitution] that freedom of the press will exist and they [editors] can write as they wish and they can create public opinion.”